Arlie Glenn Gaston v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00253-CR

Arlie Glenn Gaston,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
13th District Court of Navarro County, Texas
Judge James E. Lagomarsino, presiding
Trial Court Cause No. D41771-CR

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Arlie Glenn Gaston was convicted of two counts of aggravated robbery

and sentenced to 37 years in prison, each count to run concurrently with the

other. Because the evidence was sufficient to support his conviction, the trial

court did not abuse its discretion in excluding a witness’s testimony regarding

Gaston’s alleged mental health, and the trial court did not abuse its discretion

in admitting three self-authenticating exhibits at punishment, we affirm the
trial court’s judgments.

BACKGROUND

After retrieving his wife’s gun from his brother, to whom he had sold it,

Gaston drove around Navarro County until he ended up at the Family Dollar

store in Dawson, Texas, at about 9:00 p.m. He wandered around the store for

a while and then walked up to the checkout counter, behind which an assistant

manager and a cashier stood, and asked what time the store closed. The

assistant manager told Gaston the store closed at 10:00 p.m. Gaston responded

that he had something in his shoe that would make them close early. He then

demanded money from the register. After a regular customer bought items

while Gaston was present, the assistant manager communicated to the

customer outside that Gaston was trying to rob the store.

As Gaston waited for the store to close, officers from the Navarro County

Sherriff’s Office arrived. Gaston approached the sliding-door entrance to the

store, displayed a firearm, and stood with it at his side. After an approximately

20-minute standoff, Gaston placed the firearm on the ground and surrendered.

He later admitted to the robbery.

SUFFICIENCY OF THE EVIDENCE

In Gaston’s first issue on appeal, he contends the evidence was

insufficient to support his conviction because, specifically, the State failed to

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prove: 1) Family Dollar’s ownership of the property; 2) the two complainants

felt threatened; and 3) Gaston “brandished” or used a deadly weapon during

the offense.

Standard of Review

The Court of Criminal Appeals has expressed our standard of review of

a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence in
the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017). This standard requires the appellate court
to defer "to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson,
443 U.S. at 319. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a
sufficiency review must not engage in a "divide and conquer"
strategy but must consider the cumulative force of all the evidence.
Villa, 514 S.W.3d at 232. Although juries may not speculate about
the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S.
at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and
we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). This is because the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial

Gaston v. State Page 3
evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to "the elements
of the offense as defined by the hypothetically correct jury charge
for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge is one that
"accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State's burden of proof or
unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the
defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d
654, 665 (Tex. Crim. App. 2013). The "law as authorized by the
indictment" includes the statutory elements of the offense and
those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Gaston was charged with two counts of aggravated robbery. The

essential elements of an aggravated robbery, as modified by the indictment in

this case, are: (1) the defendant, (2) in the course of committing theft, (3) with

intent to obtain or maintain control of property, (4) knowingly or intentionally,

(5) threatened or placed another in fear of imminent bodily injury or death,

and (6) used or exhibited a deadly weapon. See TEX. PENAL CODE

§§ 29.02(a)(2), 29.03(a)(2); see also Robinson v. State, 596 S.W.2d 130, 132 (Tex.

Crim. App. 1980). "In the course of committing theft" means conduct that

occurs in an attempt to commit, during the commission, or in immediate flight

Gaston v. State Page 4
after the attempt or commission of theft. TEX. PEN. CODE § 29.01(1). A person

commits theft if he unlawfully appropriates property, meaning without the

owner's effective consent, with intent to deprive the owner of property. Id.

§ 31.03(a) & (b).

Ownership

Gaston claims the evidence is insufficient because no one testified as to

who was the true owner of the property “supposedly being stolen.” In support

of his argument, Gaston relies on the Court of Criminal Appeals’ opinion in

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011). In Byrd, the Court

addressed a variance issue in a shoplifting case where the indictment

identified the property owner as "Mike Morales." Id. at 245. At trial, the State

proved that Wal-Mart was the property owner and not "Mike Morales." Id. at

253. No one at trial had even heard of Mike Morales or that he had anything

to do with Wal-Mart. Id. at 254. The Court found a material variance between

the indictment and evidence at trial, which amounted to a failure of proof, and

concluded that the material variance rendered the evidence insufficient to

support the conviction. Id. at 258.

This is not a case, as was Byrd, where the indictment alleged one owner,

and the State proved another. Rather, in this case, the indictment did not

allege an owner because such an allegation was not required in an indictment

Gaston v. State Page 5
for aggravated robbery. Rudd v. State, 616 S.W.2d 623, 624 (Tex. Crim. App.

1981). Thus, in a hypothetically correct jury charge as authorized by the

indictment in this case, a particular owner was not required to be proved, and

the holding in Byrd is not applicable.

Texas law provides, and the jury was so instructed, that an owner is one

who "has title to the property, possession of the property, whether lawful or

not, or a greater right to possession of the property than the actor[.]" Id.

§ 1.07(a)(35)(A); see also Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App.

2016). The evidence here showed that Gaston demanded money held in a cash

register inside the Family Dollar store in Dawson, Texas. 1 There was no

evidence in the record that the money was Gaston’s or that he had any right,

much less a greater right, to the money. While there was nothing to show

Family Dollar had title to the money, the evidence is sufficient to show that

Family Dollar possessed the money in the cash register or at least had a

greater right to possession of the money than Gaston.

Threatened or Placed in Fear

Next, Gaston contends that there is insufficient evidence to prove that

the two complainants, Veronica and Brittney, were threatened or placed in fear

1
Although no money exchanged hands, a theft only has to be attempted, not completed. Jones v. State,
323 S.W.3d 885, 890 (Tex. Crim. App. 2010). See White v. State, 671 S.W.2d 40, 41-42 (Tex. Crim. App.
1984) (“[n]o completed theft is required in order for the proscribed conduct to constitute the offense of
robbery.”); Robinson v. State, 596 S.W.2d 130, 134 (Tex. Crim. App. 1980).

Gaston v. State Page 6
of imminent bodily injury or death.

The Texas Court of Criminal Appeals has said:

The plain language of the [robbery] statute encompasses not just
explicit threats, but whatever implicit threats may lead to the
victim being placed in fear. So long as the defendant's actions are
of such nature as in reason and common experience is likely to
induce a person to part with his property against his will, any
actual or perceived threat of imminent bodily injury will satisfy
this element of the offense.

Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2010). Consequently,

an accused need not expressly threaten another or display a weapon to place

an individual in fear of imminent bodily injury or death. See Howard v. State,

306 S.W.3d 407, 410-11 (Tex. App.—Texarkana 2010), aff'd, 333 S.W.3d 137

(Tex. Crim. App. 2011).

In this case, Veronica testified that she was an assistant manager at the

Family Dollar store in Dawson when Gaston tried to rob the store. She was

working the closing shift. Late in the shift, Gaston approached the counter

where she and Brittany, a cashier, were standing. He asked what time the

store closed. When Veronica told him that the store closed at 10:00 p.m.,

Gaston replied, “I got something in my shoe that says you’ll close before.” At

first, Veronica did not pay attention to what Gaston was saying. However,

when he repeated it, she decided he was serious. He also demanded money

from the cash register drawer. Veronica did not know what he had in his shoe

Gaston v. State Page 7
and never saw a weapon, but what Gaston said to her scared her. She told

Gaston that the doors had alarms on them and would go off if she closed early.

This was not the truth, but she was trying to stall.

Veronica texted “I need you” to her husband because she was scared and

had a heart condition. She tried going outside to get some air, but Gaston

followed her. She said he was trying to calm her down. The store surveillance

video showed Veronica fanning herself and placing her hand on her heart. She

was visibly distressed. It also appeared that Gaston convinced her to come

back in the store. Veronica walked back outside to smoke, but Gaston again

followed her, walking outside and then standing in the doorway. Veronica

returned to the store, walked back to the doorway, and walked back into the

store moments later. She frequently paced behind the checkout counter. She

walked back outside to smoke again, staying near or in the doorway. Gaston

kept an eye on her whenever she went outside, especially when customers

stopped to talk to her. Gaston frequently stood in the doorway and returned

inside the store, appearing to guard the entry.

Veronica testified that Brittney, who did not testify at Gaston’s trial, was

also scared. Brittney was only 19 years old and was crying and visibly shaken

by what Gaston was trying to do. She placed her hand on her heart as well

after Gaston approached the counter. Veronica was afraid to run because she

Gaston v. State Page 8
did not know what Gaston would do and did not want to leave Brittney behind.

Eventually, she and Brittney exited the store and stood just outside the doors

smoking cigarettes. They were still in Gaston’s line of sight. Later, when

sheriff’s deputies arrived, Veronica and Brittney took the opportunity to leave

the store front. Gaston then walked out of the store, stood in the doorway, and

displayed a handgun, a revolver, in the palm of his hand, causing a standoff

between the deputies and Gaston.

This evidence of Veronica’s and Brittney’s physical responses to Gaston’s

actions and what he had said showed they perceived a threat of imminent

bodily injury or death. Accordingly, based on a review of the evidence in the

light most favorable to the verdict, a rational jury could find that Gaston either

threatened or placed Veronica and Brittney in fear of imminent bodily injury

or death, and the evidence is sufficient to support this element of aggravated

robbery.

Deadly Weapon

Lastly, Gaston contends the evidence is insufficient because there was

no evidence that he used or “brandished” a deadly weapon during the robbery.

A person commits aggravated robbery if he commits robbery and uses or

exhibits a deadly weapon. TEX. PENAL CODE § 29.03. In this case, the deadly

weapon is a firearm. Id. § 1.07(17)(a). A person uses or exhibits a deadly

Gaston v. State Page 9
weapon under the aggravated robbery statute if he employs the weapon in any

manner that facilitates the associated felony. Glover v. State, 710 S.W.3d 816,

822 (Tex. Crim. App. 2025); McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim.

App. 2000); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). As

the Court of Criminal Appeals has said

… "used . . . a deadly weapon" during the commission of the offense
means that the deadly weapon was employed or utilized in order
to achieve its purpose. Whereas "exhibited a deadly weapon"
means that the weapon was consciously shown or displayed during
the commission of the offense. Therefore, the court of appeals was
correct when it stated that "'used . . . during the commission of a
felony offense' refers certainly to the wielding of a firearm with
effect, but it extends as well to any employment of a deadly
weapon, even its simple possession, if such possession facilitates
the associated felony." (citation omitted). However, to "exhibit" a
deadly weapon it need only be consciously displayed during the
commission of the required felony offense. Thus, one can "use" a
deadly weapon without exhibiting it, but it is doubtful one can
exhibit a deadly weapon during the commission of a felony without
using it.

Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Thus, actual

“brandishing” of a deadly weapon is not required.

In this case, Gaston, used a firearm—a revolver—even though he did not

exhibit it to Veronica or Brittney, to facilitate the commission of the robbery.

He approached them as they were behind the checkout counter and stated that

he had something in his shoe that would make them close the store early. He

repeated his statement. He demanded money. Veronica and Brittney were

Gaston v. State Page 10
scared. Although they did not hand over any money, Gaston remained at or

near the counter, keeping an eye on them— especially when Veronica would

step outside—and backing away slightly when customers needed to pay for

their items. Veronica and Brittney were trapped.

When sheriff’s deputies arrived and Veronica and Brittney made their

escape from the front of the store, Gaston displayed the revolver to the deputies

with arms open wide, but he would not put it down. He would not put his

hands in the air. He would not get on his knees. When searching himself for

a lighter after retrieving his cigarettes, Gaston put the revolver in his back

pocket and went back inside the store to take a lighter from the store. He then

stood in the open doorway to light and smoke his cigarette. With the revolver

still in his back pocket, he then retrieved a beer from the store and again, stood

in the open doorway while he smoked his cigarette and drank the beer.

Eventually, he retrieved the revolver from his back pocket, placed it on the

ground, and surrendered.

Thus, based on the evidence viewed in the light most favorable to the

verdict, a rational jury could find that Gaston used a deadly weapon, and the

evidence is sufficient to support this element of aggravated robbery.

Gaston’s first issue is overruled.

Gaston v. State Page 11
EXCLUDED TESTIMONY

Next, Gaston complains that the trial court erred by prohibiting a

defense witness from testifying that Gaston was suffering from a “mental

health incident” when Gaston committed the offense.

Because Gaston characterized this witness as an expert, a Rule 702

hearing was held. See TEX. R. EVID. 702. After the hearing, the trial court

prohibited the witness from discussing any mental health determination made

by the witness or by anyone with whom the witness spoke. We review a trial

court's decision to admit or exclude expert testimony for an abuse of discretion,

and we may not reverse those rulings unless they fall outside the zone of

reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim.

App. 2012).

Pursuant to Texas Rules of Evidence 702 and 705, three requirements

must be met before expert testimony can be admitted: "(1) The witness

qualifies as an expert by reason of his knowledge, skill, experience, training,

or education; (2) the subject matter of the testimony is an appropriate one for

expert testimony; and (3) admitting the expert testimony will actually assist

the fact-finder in deciding the case." Vela v. State, 209 S.W.3d 128, 131 (Tex.

Crim. App. 2006); see TEX. R. EVID. 702; 705; Wolfe v. State, 509 S.W.3d 325,

335 (Tex. Crim. App. 2017). These requirements are commonly referred to as

Gaston v. State Page 12
(1) qualification, (2) reliability, and (3) relevance. Rhomer v. State, 569 S.W.3d

664, 669 (Tex. Crim. App. 2019).

Gaston contends that the witness met all three requirements but focuses

on the relevance of the witness’s testimony in his appellate brief. The State,

on the other hand, focuses primarily on the witness’s lack of qualifications with

a minor discussion of relevance in its appellate brief. Nevertheless, because it

appears that the qualification of the witness to testify as an expert was the

focus of the Rule 702 hearing and the trial court’s ruling, we begin with that

requirement.

The specialized knowledge that qualifies a witness to offer an expert

opinion may be obtained from specialized education, practical experience, a

study of technical works, or a combination of these things. Rhomer, 569 S.W.3d

at 669. “A witness must first have a sufficient background in a particular field,

but a trial judge must then determine whether that background 'goes to the

very matter on which [the witness] is to give an opinion.'" Rhomer, 569 S.W.3d

at 669, quoting Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). "Fit"

is a component of qualification, and "the expert's background must be tailored

to the specific area of expertise in which the expert desires to testify." Id.,

quoting Vela, 209 S.W.3d at 133. The party offering expert testimony has the

burden to show the witness is qualified on the matter in question. Rhomer,

Gaston v. State Page 13
569 S.W.3d at 669.

To determine whether a trial court has abused its discretion in ruling on

an expert's qualifications, an appellate court may consider: (1) the complexity

of the field of expertise; (2) how conclusive the expert's opinion is; and (3) how

central the area of expertise is to the resolution of the lawsuit. Rhomer, 569

S.W.3d at 669. Greater qualifications are required for more complex fields of

expertise and for more conclusive and dispositive opinions. Id.

At the Rule 702 hearing, the witness testified it was his intent to offer

an opinion that Gaston was mentally ill when he committed his crime. The

witness clarified he wanted to opine that Gaston was suffering from symptoms

of mental illness. 2 His only qualifications for making those statements was

that the witness had been a police officer for 22 years, had dealt with mentally

ill individuals, and had attended a week-long class which certified him to

become a “Mental Health Officer.”

Mental health is a complex field; and in the criminal trial context:

…psychiatrists gather facts, through professional examination,
interviews, and elsewhere, that they will share with the judge or
jury; they analyze the information gathered and from it draw
plausible conclusions about the defendant's mental condition, and
about the effects of any disorder on behavior; and they offer
opinions about how the defendant's mental condition might have
affected his behavior at the time in question. They know the

2
That the witness later said he was only identifying “indicators” and not making a diagnosis or
identifying symptoms, is of no consequence. A symptom is defined as something that “indicates” the
existence of something else. See https://www.merriam-webster.com/dictionary/symptom.

Gaston v. State Page 14
probative questions to ask of the opposing party's psychiatrists and
how to interpret their answers. Unlike lay witnesses, who can
merely describe symptoms they believe might be relevant to the
defendant's mental state, psychiatrists can identify the "elusive and
often deceptive" symptoms of insanity, (citation omitted), and tell
the jury why their observations are relevant…. Through this
process of investigation, interpretation, and testimony,
psychiatrists ideally assist lay jurors, who generally have no
training in psychiatric matters, to make a sensible and educated
determination about the mental condition of the defendant at the
time of the offense.

Ake v. Oklahoma, 470 U.S. 68, 80-81, 105 S. Ct. 1087, 1095 (1985) (emphasis

added). In this case, Gaston wanted the witness to give the jury a “non-

criminal explanation as to why” Gaston committed the offense and the

“passive” manner in which he did it. In other words, Gaston wanted to give

the jury a way to say he did not have the intent to commit the crime. Without

Gaston having requested an insanity defense, the ability to present this kind

of “expert” evidence to a jury would be central to the resolution of the case.

Because of the field in which the witness was attempting to testify and

because the ramifications the type of testimony the witness might provide, the

trial court could have determined the witness needed greater qualifications

than he had to testify as to the symptoms or indicators of an alleged mental

illness in Gaston. Accordingly, the trial court did not abuse its discretion in

excluding the witness’s testimony as an expert.

Gaston’s second issue is overruled.

Gaston v. State Page 15
SELF-AUTHENTICATED EVIDENCE

In his last issue, Gaston argues the trial court erred during the

punishment phase of his trial by admitting State's Exhibits 46 through 48

which appear to be newspaper articles of an extraneous offense—an escape

from the Henderson County Jail after being arrested for murder.

A trial court has broad discretion in determining the admissibility of

evidence presented during the punishment phase of trial and may admit

evidence deemed relevant to sentencing, including evidence of other crimes or

bad acts. TEX. CODE CRIM. PROC. art. 37.07, sec. 3(a)(1); Schultze v. State, 177

S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Thus, we

review the trial court's decision to admit the complained of evidence under an

abuse of discretion standard. See State v. Heath, 696 S.W.3d 677, 688 (Tex.

Crim. App. 2024); see also Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.

App. 2018) (decision regarding authentication). A trial court abuses its

discretion if its decision lies outside of the zone of reasonable disagreement.

Heath, 696 S.W.3d at 688-87.

At punishment, the State sought to introduce three items that appeared

to be newspaper articles covering the story of Gaston’s escape in 1989 from the

Henderson County Jail after he had been arrested for murder. Gaston

Gaston v. State Page 16
objected, arguing the articles were not properly authenticated. The trial court

overruled the objection without explanation.

Rules 901 and 902 of the Texas Rules of Evidence govern how a

proponent may authenticate or identify evidence. TEX. R. EVID. 901, 902.

While Rule 901 requires the proponent to "produce evidence sufficient to

support a finding that the item is what the proponent claims it is" and provides

a non-exclusive list of examples of such evidence, Rule 902 provides an

exclusive list of certain items that are "self-authenticating" which "require no

extrinsic evidence of authenticity in order to be admitted." Id. For example,

"[p]rinted material purporting to be a newspaper or periodical" are self-

authenticating. TEX. R. EVID. 902(6). Thus, under Rule 902, such documents

are automatically authenticated. Fleming v. Wilson, 610 S.W.3d 18, 20 (Tex.

2020).

On appeal, Gaston complains that it was not possible to determine the

exhibits were “clips” from a newspaper or periodical; thus, the trial court

abused its discretion in admitting them. But the exhibits looked like, and the

trial court had the discretion to conclude they were, copies of newspaper

articles. As such, the exhibits were self-authenticating, and no other

identifying information needed to be provided.

Gaston v. State Page 17
Thus, the trial court did not abuse its discretion by admitting State’s

Exhibits 46 through 48, and Gaston’s third issue is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s

judgments.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: September 25, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

Gaston v. State Page 18